A European court ruled that the four-fingered shape of the KitKat chocolate bar is not distinctive enough to be trademarked.

AP: Martin Cleaver

KitKat's bid to trademark its famous four-finger shape has been rejected by a European court.

The chocolate bar's maker Nestle has for 16 years tried to trademark its four-finger shape in the European Union, arguing that it is a distinctive feature that deserves protection, like Toblerone's trademarked pyramid blocks.

But now judges have ruled the four fingers cannot be trademarked because the shape is not recognised throughout all 28 countries of the EU.

The court instead sided with the makers of Kvikk Lunsj, a Norwegian snack shaped almost exactly the same as a KitKat.

The decision will allow Mondelez, the maker of Kvikk Lunsj, to market and sell the chocolate bar more widely throughout the EU.

The court is the latest battleground in the feud between the chocolate bars, which began when company Freia first introduced the Kvikk Lunsj — which translates to "Quick Lunch" — to Norwegians in 1937, two years after KitKat hit UK shelves.

Their battle intensified in 2006 when Nestle secured a trademark for KitKat's shape, only to be challenged by Kvikk Lunsj maker Cadbury, now owned by Mondelez.

In 2016, Nestle was stripped of the trademark since the shape of the treat was not considered recognisable throughout the EU.

The manufacturer appealed the decision in the bloc's highest court, which ruled on Wednesday that though the shape was viewed as distinctively KitKat in many EU countries, consumers in Belgium, Ireland, Greece and Portugal did not recognise it.

Nestle pledged to keeping fighting to secure the trademark and would ask the appeals board to re-examine the evidence.

Trademarks are popular in the confectionery industry

It is not the first time a chocolate maker failed to trademark a shape. Switzerland's Lindt & Spruengli wanted to protect the form of its chocolate Easter rabbits covered in gold foil with a red ribbon.

But its case was also thrown out, in 2012, for similar reasons.

In the United States, Hershey has a trademark registration for the shape of Kisses chocolates, Mondelez has one for Toblerone and General Mills has one for the cone-shaped Bugles snacks.

Josh Gerben, a trademark attorney in Washington DC, said companies needed to show that a shape was distinctive enough to get a trademark approval, and that the shape was not merely functional.

"They want to make sure they're not giving a monopoly to a company for a shape that is needed to make a product," Mr Gerben said.

"For example, a circle for a cracker couldn't be trademarked."

When trademarks are granted, Mr Gerben noted it is likely for use within a specific industry.

For instance, a court recently ruled against Coca-Cola's claim over use of the word "zero" for diet drinks with no calories, such as Coke Zero.

Had Coca-Cola prevailed, Mr Gerben said it would have simply prevented other soft drink makers from using the word in the same way.